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Opinion Articles The State Attorney’s Office Virtual Reality
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The State Attorney’s Office Virtual Reality

*Originally published in Haaretz’s Hebrew edition, 30.11.17.

The Israeli government, with the help of public entities, is waging an all-out war against Breaking the Silence (BtS). As part of this war, these organizations called on various law enforcement agencies to open a criminal investigation against BtS’ spokesperson, Lieutenant (res.) Dean Issacharoff, based on things he said at a public rally. Justice Minister Ayelet Shaked followed suit, demanding the same action from the Attorney General, despite being his administrative superior – a demand with a polluting  potential. Recently, perhaps unintentionally, the State Attorney’s Office has unfortunately become a tool in this war.

The investigation of the matter, and the subsequent decision reached by senior State Attorney’s officials, leave a bitter taste. The superficiality of the investigation was immediately exposed in the press, through important revelations following the publication of the State Attorney’s Office’s decision, including the testimony of the Company Commander’s Signaler – supporting Issacharoff’s version of the events – and the possibility that the Palestinian questioned, Hassan Joulani, was in fact not the person allegedly assaulted by Issacharoff. The fact the investigators didn’t show Issacharoff a photo of Joulani was an obvious mistake, even if Issacharoff believed that he would not have been able to identify the victim; obviously, Issacharoff might have identified him anyway. Furthermore, the fact that Joulani signed a testimony written in Hebrew, a language he cannot read, does little to add to the credibility of his questioning.

Even when reading the State Attorney’s Office’s decision  [to close the case], striking flaws stand out. Firstly, the manner in which the case is portrayed: Issacharoff’s statement at the public rally, is presented at the beginning of the decision, in an untrue and inaccurate manner. The decision states that the Palestinian was beaten “without any operational justification.” The decision continues by stating that during his interrogation by the police, Issacharoff said that he “had to use force to arrest him,” and that he couldn’t zip-tie the Palestinian without using force. The impression formed by this wording is that during his interrogation by the police, Issacharoff diminished and downgraded his actions, in comparison to his words at the public rally. This impression is based on falsification and deception.

At the public rally, Issacharoff said that his Company Commander demanded he handcuff the Palestinian, who was caught after throwing stones, and that the Palestinian was sitting with his hands wrapped around himself, that is, resisting arrest in a non-violent manner. Issacharoff didn’t know what to do. He couldn’t threaten the Palestinian because he didn’t speak Arabic, and found it difficult to appear helpless in front of his fellow soldiers. This is the background to Issacharoff’s actions, as he testified: “I took hold of his nape and started kneeing him in his face and chest until he was bleeding and dazed.” It should be noted that “dazed” doesn’t necessarily mean fainting or losing consciousness. In fact, Issacharoff also used the term “dizzy” to describe the results of his actions. From the outset Issacharoff claimed that the use of force was itself operationally justified, and that his statement during his interrogation corresponded with his original version of events. Issacharoff’s testimony was about using disproportionate force, probably as a result of lack of adequate training in dealing with a person passively resisting being handcuffed; this was never presented as a case of ruthless violence or brutality.

Secondly, even if Joulani was the victim, there was no justification in closing the case citing “lack of guilt,” and determining that Issacharoff made a false claim. The decision lay on the thin line of defining disproportionate force, whereas the use of force itself was probably justified. This is a difficult, delicate decision, in a case dealing with an incident that took place three years ago, and any person authorized to reach a decision that could employ the judicial option of avoiding clear-cut statements, would seek to avoid such an unambiguous statement. The decision in the case, despite the testimony of the alleged victim and the company commander, is based on weak foundations – the victim’s version could be a result of his wish to please his interrogators, while decreasing the risk that he would be accused of resisting arrest. On the one hand, obviously his subjective assessment of the force used against him seriously affected the manner in which he remembered the event (in the same way that Issacharoff’s subjective assessment would). On the other hand, it cannot determine the question of reasonableness of use of force, a matter that should be determined according to objective, normative terms. It’s odd that Joulani testified that force was used against him due to his resistance to being handcuffed, and simultaneously, also testified that he wasn’t beaten.

As for the Company Commander, he is not a disinterested witness. The use of excessive force would determine him as an alleged accomplice to the crime. The testimonies of Joulani and the Company Commander, must be balanced by Issacharoff’s testimony as well as the basic assumption that a person does not implicate himself needlessly, a basic assumption that has led to guilty verdicts of millions in Israel and abroad. What is the likelihood that Issacharoff would fabricate a tale about kneeing a detainee, thus comprising his morality, according to his own values? Breaking the Silence has collected dozens if not hundreds of testimonies of far more severe incidents – why on earth would its spokesperson want to add an incident about himself that never took place?

It is crystal clear, or should be, that the wrongheaded ruling of the State Attorney’s Office in this matter must inevitably lead to serious consequences, and not only as far as Issacharoff and Breaking the Silence are concerned. It sends a clear message to whomever took part in illegal actions in the Occupied Territories or was a witness to such actions: he better stay silent. Whoever breaks the silence risks not only being ostracized by those who wish to protect the IDF’s reputation at all costs, but also risks being branded as a liar. It is clear that anyone truly concerned about the military’s morality should encourage speakers such as Nathan Alterman [who wrote about war crimes in the War of Independence], and Michael Heshin, Deputy Chief of the Supreme Court who broke the silence about what went on in the First Intifada – instead of silencing them.

Taking this into consideration, any reasonable official that bases his decision on written documents, would refrain from the presumption of determining the verdict of Issacharoff and branding him as a liar. The perils of such an error are huge, especially when no such language is called for, and it serves no reasonable purpose.

The unequivocal statements in the State Attorney’s Office’s decision stray from reason and demand an explanation. Furthermore, the Deputy State Attorney’s complaint, during an interview with Sima Kadmon (Yedioth Aharonoth, November 24th), that Issacharoff refrained from naming witnesses, is deeply disturbing. Has she yet to understand that Breaking the Silence does not work to implicate commanders and comrades-in-arms? Has the renowned attorney never heard of the norms practiced by all armies, including the IDF, of closing the ranks and preventing airing the dirty laundry outside of the military unit? Were the writers of the State Attorney’s Office’s decision serious when they chose to give weight to the fact that the alleged Palestinian victim did not issue a complaint, or that the records, required by procedures, did not report any injuries? Did the State Attorney’s Office’s advocates construct a virtual reality, consisting of an impartial and equal rule of law that reigns with an iron fist in the Occupied Territories?

Only God himself, who can see through the soul of man, can understand what motivated these advocates to act in the way that they did. Being human, it would be reasonable to assume that they were unconsciously influenced by the Minister of Justice’s letter, the government’s policies and the public hostility towards Breaking the Silence. The State Attorney’s Office is yet another victim of this affair. These officials, like us all, are the victims of the extremely human tendency to ‘be right’ and feel just, even when we are not; to believe in what we find convenient to believe in the current context, even if it means being blind to anything that contradicts the pursued vision of justice, in fact, denying its very existence. This tendency increases during a period of an ongoing violent conflict, and in order to maintain it, demonization of the enemy and sanctification of ourselves is necessary. In a sense, it is the victim of the difficulty to understand that one cannot maintain a prolonged foreign rule over others while denying their civil and political rights- without the use of oppression. It is the difficulty of admitting that an Israeli law enforcement system in an area populated by Israeli civilians and Palestinian residents, contradicts the concept of equality before the law, and that, in fact, the rule of law is extremely limited.

And yet another question: as the affair unfolded, two Palestinians complained to the press as to the use of violence towards them. Joulani told ‘Haaretz’ about an event during which he was beaten by six Border Patrol officers; another Palestinian, featured in a B’Tselem video being led by Issacharoff, told the press he was beaten by men in uniform before he was led away by Issacharoff. Why have those, who called for Issacharoff to be indicted, in the name of the rule of law in the Occupied Territories and Palestinian human rights, not called now for an investigation of these two violent incidents? And where is the State Attorney’s Office, who began the inquest without understanding its full implications, and now dares to portray Issacharoff as a person who wanted the investigation and was supposed to supply evidence against himself? And all this, while Breaking the Silence saw the investigation from the start as an act of persecution, an effort to silence the organization.

The Attorney General recently stated that there is only one State Attorney’s Office. That is true, and therefore it is of utmost importance to safeguard its integrity, professionalism and impartiality. Still, while there is indeed only one State Attorney’s Office, it does not mean that it is always deserving of the immense trust it receives. The public’s trust in the State Attorney’s Office must be in tune with its performances. The investigation of Dean Issacharoff and branding him as a liar, undermines this trust. The Attorney General’s job is not only to protect the State Attorney’s Office, but also to supervise its conduct. As part of this supervision, he must consider the deception and falsification underlying the State Attorney’s Office’s decision, as described above. And two more lessons: advocates, please shield the cherished trust bestowed upon you by the public. And politicians, get your hands off the State Attorney’s Office.

Prof. Emeritus Mordechai Kremnitzer is vice President of the Israel Democracy Institute.

 

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